In Depth

Before filing a case on behalf of multiple people who have been injured, either physically or monetarily, an initial decision
must be made of whether to bring each person’s claims individually or as a group. If you believe bringing the claims
as a group would be more beneficial for purposes of economy of scale, greater bargaining power collectively and efficiency,
the next issue is whether to pursue the case as a class action or a mass action. These types of procedural mechanisms for
bringing a group of claims together are appropriate under different circumstances, and each has its own pros and cons.

Sometimes the decision of which type of action to pursue is easy, while other times there is some strategy and weighing of
options involved, as well as legal considerations of whether the proposed class meets the criteria for certification. Here
are some considerations to keep in mind when making this decision with your clients.

How many plaintiffs can be practically joined, and can they represent others or just themselves?

One of the most obvious differences between a class and mass action are the number of plaintiffs named in the lawsuit. Class
actions have only one or a few named plaintiffs, who act as representatives of the entire class, because, as Trial Rule 23
says, the class is so large joinder of all the members would be impracticable. That means technically there are only a few
named parties to the lawsuit, and those class members not listed as class representatives have very limited input and responsibilities
with regard to the lawsuit.

Those absent class members normally don’t have to answer discovery, go to depositions or court hearings, and don’t
have to prove their claims individually (at least not their liability claims). Instead, although there are some chances along
the way for them to opt out or contest any settlement, for example, even class counsel only has to communicate with class
members during certain limited times during the lawsuit. The other side of the coin of this representation, however, is that
if the class is certified, the results of the lawsuit are res judicata for all class members – whether named
or not. That is why to get certified as a class the court must determine that the class is adequately represented by both
the class representatives and the attorneys for the class.

On the other hand, mass actions typically have many allegedly injured parties, too, but instead of choosing one or two people
to represent everyone, each person is individually listed as a plaintiff. Since the Class Action Fairness Act was signed into
law in 2005, whenever such a mass action lists more than 100 plaintiffs, it is typically deemed to be a class action removable
to federal court by defendants. 28 U.S.C. 1332(d)(11). Further, when many lawsuits, even across districts, deal with the same
issues, they often are brought together with federal multidistrict litigation governed by the procedural rules found at 28
U.S.C. 1407 and 2112.

Unlike with class actions, each plaintiff in a mass action has responsibilities for doing all the activities that any regular
plaintiff must do, like discovery, etc. Further, although there are some procedural mechanisms that can be put in place to
try to prove some elements of the case across the board for all claimants, at the end of the day each person’s case
ultimately is decided individually.

How similar are the plaintiffs’ claims in regard to both commonality and typicality?

The other major difference between a class action and mass action is whether the claims are similar enough, either factually
and/or legally, to be able to prosecute them as a whole. Class actions only can be brought if they meet all the requirements
of Federal Rule of Civil Procedure 23 (or a similar state rule, such as Indiana Rule of Trial Procedure 23), whereas mass
actions are a default when all such requirements cannot be met.

There are many procedural rules set in place for determining when a class action is appropriate, but ultimately the idea
behind each of them is to make sure that the person who is the class representative can adequately represent the interests
of his or her fellow class members. This was touched upon above, but it also is important for the other two major requirements
for a class to be certified – commonality and typicality. The idea is that a class representative could not adequately
represent another absent person if they do not pose questions of law and fact common to the class, and if the named parties’
claims or defenses are not typical of the class.

Mass torts sometimes are not the right fit for class actions.

A common example of claims that are sometimes not appropriate as class actions are mass torts, where multiple people are
injured in a large accident. Mass torts can include such things as injuries from pharmaceutical drugs, large-scale accidents
and even product liability claims. In fact, the comment to FRCP 23(b)(3) explicitly cautions against the use of the class-action
device in mass tort cases. The reasons for this include that these cases involve personal injuries and sometimes even death,
meaning that each claim is not easily described as “typical” because there is a need for individual evidence of
exposure, injury and damages for each plaintiff, not just class representatives.

Here in Indiana we are unfortunately too familiar with such a large accident – the stage collapse at the Sugarland
concert at the Indiana State Fair. In that case, the victims have brought a mass action, not a class action, against various
defendants alleging fault for the accident. It would not have been appropriate to try to bring a class action because there
was no commonality regarding the injuries, and therefore each plaintiff’s case ultimately must be decided on its own.
On the other hand, the State Fair stage collapse case is perfect for a mass action as the liability claims (what caused the
stage to collapse and who is responsible) will require the same proof for all the injured parties.

There are factual and legal differences between individual claims in mass actions. These differences make it impossible to
fulfill the elements of typicality and adequacy which are required for Rule 23(a). Further, these same differences make it
difficult to demonstrate that the putative class has the requisite “cohesiveness” which is required in Rule 23(b)(2)
and makes it difficult to demonstrate that the putative class has common issues which “predominate,” which is
required for Rule 23(b) claims.

Another reason not mentioned in procedural rules themselves, but which often is an important factor in why class actions
do not practically work for mass torts, is that when someone suffers a personal injury, they and the courts have major concerns
about autonomy and being properly represented as a class member. Each plaintiff has significant interest in individually controlling
the prosecution of separate actions and a substantial stake in making individual decisions on whether and when to settle.
This came into stark focus in the nationwide asbestos settlement classes proposed in Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997),and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), when the individual absent class
members had concerns so great about the proposed class-action settlements that they pursued their objections all the way to
the United States Supreme Court on multiple occasions.

While there are many legal and practical differences between class actions and mass actions, they often have the same general
goal in mind – get relief for the injured parties as quickly, efficiently and in as cost-effective manner as possible.
Certain factual situations lend themselves better than others to one procedural mechanism, so the first step is to examine
the facts of the case and decide which has a better chance of achieving the goals of your clients before going forward.•

__________

Scott Starr is a partner at Starr Austen & Miller and Mario Massillamany
is an associate at Starr Austen & Miller. Both concentrate their practices in the areas of securities and class-action
litigation. Massillamany and Starr currently are involved in numerous class-action lawsuits throughout the country including
the multidistrict litigation against Dupont and the Indiana State Fair mass-action lawsuit. The opinions expressed are
those of the authors.

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